10 Dec 2010

The Literal Rule

Before continuing with how laws are made, I am – for the sake of avoiding confusion – explain a little how laws are interpreted. By explaining this now, I hope readers get a clearer idea on what happens when laws are unclear. This way, if I use examples later on, and some thought comes to the reader’s mind that the law ‘doesn’t make sense’, s/he would remember this explanation and hopefully clarify the situation.

The literal rule

The literal rule is the primary rule which takes precedence over the others.

Words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.

If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: ‘The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself’.

The literal rule is strongly criticised by many lawyers. It has been said to be ‘….a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot’. Such criticism, it is submitted, is misguided. For example, the Hotel Proprietors Act 1956 provides that in certain circumstances an hotel proprietor is liable for loss of or damage to guests’ property, but that this liability does not usually extend to guests’ motor vehicles or property left ‘therein’. The question arises – is the hotel proprietor liable for property left on, rather than in, a vehicle, for example, on a roof rack. On a literal interpretation, the hotel proprietor is liable, because if Parliament had intended to exclude property left on a vehicle, the Act would have said ‘therein or thereon’. The ‘common-sense’ school would say that it is ridiculous to make a distinction between property left in or on a vehicle. That may be so in the admittedly trivial example given, but if this line of argument is accepted, it means that the courts would have power to rewrite Acts of Parliament, which many people would consider to be highly dangerous, particularly where it takes the form of assuming that Parliament ‘intended’ something, when in truth it is more than likely that Parliament never gave that matter a moments’ thought.

It is better that the courts interpret statutes strictly, and if this leads to unsatisfactory or inequitable results, then Parliament should pass amending legislation to indicate clearly what its intention was.

The full force of the literal rule was demonstrated in the case of Whitely v, Chappell (1869). The defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a dead person is not entitled to vote.

The literal rule involves two subsidiary rules. The first is the noscitur a sociis rule, a high-sounding rule which simply means that the meaning of a word must be determined by its context. For example, the word ‘ring’ has no specific meaning in isolation, but its meaning becomes clear in a context such as ‘ring the bell’, or ‘he bought her an engagement ring’.

The second subsidiary rule is the ejusdem generis rule, which is that the meaning of any general term is dependent on any specific terms which precede it. A good example is the Betting Act 1853, which prohibited the keeping of a ‘house, office, room or other place’ for the purposes of betting. How wide is the term ‘or other place’ in this context? The term is so vague that it is impossible to say, but in Powell v. Kempton Park Racecourse Co. (1899) it was held that it did not include Tattersall’s ring at a racecourse; the specific places mentioned in the Act – house, office, room – are all indoors, whereas Tattersall’s ring is not.